On April 2, the Federal Energy Regulatory Commission (“FERC” or “Commission”) Chairman Neil Chatterjee announced additional steps the Commission is taking as regulated entities struggle to balance ensuring continued operations on one hand and regulatory compliance burdens on the other during the COVID-19 pandemic. According to Chatterjee, while “the Commission will continue its market surveillance efforts to protect market participants and consumers from the effects of anti­competitive behavior,” the Commission will exercise prosecutorial discretion in addressing events that arise during the pandemic and “will not second-guess the good faith actions that regulated entities take in the face of this emergency.”

With respect to enforcement actions related to operations occurring during the pandemic period, FERC’s Office of Enforcement staff will consider the current emergency when evaluating compliance programs, including the timing of self-reporting, as part of its analysis. In addition to routine informal communications with Enforcement staff, FERC has created two Commission staff task forces aimed at expediting the processing of both standards of conduct waiver requests and no-action letters. The FERC.gov coronavirus, standards of conduct and no-action letter web pages outline these enhanced procedures, including staff contact information in order to promote the prompt resolution of these matters. In addition, Chatterjee announced that the COVID-19 pandemic qualifies as an “emergency” regulations, activating the suspension of certain of FERC’s regulations related to standards of conduct.

Some other issues covered by FERC’s announcement include:

Ongoing enforcement actions: with respect to ongoing enforcement actions, Enforcement staff will work with each entity to provide flexibility with discovery-related or other deadlines through July 31, 2020.

Audits: Enforcement staff will not begin any new audits until July 31, 2020.

Market Surveillance: Enforcement staff will only contact entities regarding surveillance inquiries that involve market behavior that could result in significant risk of harm to the market.

Forms: the Commission has issued an extension to June 1, 2020 with respect to the filing of certain forms and will expedite processing waiver or extension requests.

Self-Reporting: entities may delay for 60 days the submission of self-reports that involve inadvertent errors producing no significant harm to the markets, ratepayers or other market participants.

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Blog Editors

Kevin Conroy is a partner in Foley Hoag’s Administrative Law Department, with a primary focus on regulatory and government investigations. He co-chairs the firm’s Energy and Cleantech and State Attorney General groups...More

As Chair of Foley Hoag's Taxation Group, Nicola Lemay advises clients in all stages of their business development. She represents clients in the tax aspects of structuring and financing renewable energy projects... More